There is something deeply paradoxical about
laws that criminalize blackmail. How is it that, as Glanville Williams put it,
"two things that taken separately are moral and legal whites together make
a moral and legal black"? [1] For the crime of blackmail involves the
criminalization of two otherwise legal acts when they occur in combination- for
example, the threat to disclose damaging information about another, and the
offer to refrain from disclosing it for some valuable consideration. Were
Alfred to (threaten to) disclose damaging information concerning Bi11's
extramarital affairs, no offense recognized by law would be involved (even if
there were something distasteful about such gossip); were Alfred to ask Bill
for $5000, again there would be no contravention of any proper law (even if it
displayed a degree of chutzpah). But were Alfred to threaten Bill that he would
disclose information concerning Bill's extramarital affairs unless Bill paid
him $5000, his two-part act would – under current laws-constitute the crime of
blackmail. Why should the conjunction of such otherwise legal acts have an
entirely different legal status? [2]

The paradox is heightened when we consider
the reverse situation. Bill learns that Alfred is in possession of damaging
information concerning him. He seeks Alfred out, and offers him $5000 to keep
silent. If Alfred accepts Bill's offer, and subsequently keeps mum, he should
not be held to have blackmailed Bill. Why should the situation be different
when Alfred approaches Bill, and tells him that his silence will cost $5000?

This is the heart of the libertarian critique
of blackmail laws, and in this essay I propose to defend that critique against
a number of arguments that have been advanced to justify them. Although my
critique of such laws depends ultimately on my belief that criminal
prohibitions are justified only when some material threat is posed to another
(by means of force, fraud, or theft), my arguments here will show that various
attempts to avoid or account for the paradox do not succeed, even on their own
terms. Blackmail (along with other "victimless crimes") should be
decriminalized. [3,4]

Some Definitional Preliminaries

Although standard instances of blackmail
involve a threat to disclose damaging information if some monetary payment is
not made, the range of possibilities is somewhat wider. Leo Katz, for example,
suggests as alternative threats:

Pay me $10,000- or I will: cause some
really bad blood at the next faculty meeting, . . . seduce your fiancé, . . .
persuade your son that it is his patriotic duty to volunteer for combat in
Vietnam, . . . give your high-spirited, risk-addicted 19-year-old daughter a motorcycle
for Christmas, hasten our father's death by leaving the Catholic church. [5]

Demands as well as threats may vary: usually
it is for money, but it could also be for sexual favors or some other valued
consideration. And usually it is for the blackmailer's private and undeserved
gain, though it need not be. Imagine, writes Eric Mack,

that you can deter a factory owner from
(safely) burning his plant to the ground (and thus thoroughly eliminating many
employment opportunities) for the sake of destructive glee only by threatening
to reveal his secrets. Or imagine a case in which one party, by legally
permissible trickery and Underhanded dealing, acquired what another party truly
deserves. Wouldn’t it be perfectly moral for the morally deserving party to blackmail
the first party into transferring that valued good- especially if what was
threatened was precisely the [revelation] of the trickery and underhandedness?
[6]

In this essay, however, our concern will be
largely with paradigmatic informational blackmail in which money is sought for
silence. Blackmail should not be confused with extortion. In the latter, a
threat to do something that would otherwise be illegal is made in demanding
something from another: If Charles threatens to break David's knees or burn
down his house if David does not give him $5000, Charles is guilty of
extortion, not blackmail, Extortion is properly considered illegal.

Is There Really a Paradox of Blackmail?

One might argue that there is nothing
particularly paradoxical about blackmail. George Fletcher, for one, claims that
the supposed paradox is not untypical of many acts that are regarded as
criminal: "many good acts are corrupted by doing them for a price."
[7] Fletcher instances bribery, prostitution, and payment for confessing to a
crime. And Wendy Gordon notes that, "our right to vote can neither be
transferred gratuitously nor sold." [8]

But are these plausible counter instances?
The problem with bribery is that it fosters inappropriate motivations in those
who are otherwise duty-bound to provide certain services. Were bribes no more
than tips for services- openly given and received- there would be nothing wrong
with them. What makes bribery problematic is not the conjunction of service and
money, but the fact that money given secretly becomes an incentive to forgo
duty and/or to do it only when more is giver than one is contractually obliged
to accept. Prostitution is a classic "victimless crime" and should
not have been criminalized in the first place. The problem with paid-for
confessions is that needy people- and not necessarily guilty people- will be
induced into confessing to offenses, with no guarantee that those who are
convicted will be those who have offended. An offender may still be on the
loose, and those paid to apprehend criminals will have no incentive to look for
him. As for the right to vote, it could have been otherwise. The only reason
that political votes (unlike votes in publicly traded corporations) cannot be
sold is that a majority has agreed not to commodify them.

Blackmail and Other Commercial
Transactions

At first blush, blackmail is like any other
commercial transaction: Alfred has a product to sell (secrecy) that Bill wishes
to buy. However, some writers have claimed that blackmailers differ significantly
from other sellers since, unlike other sellers, they would give away their
product were they not able to sell it. [9] Perhaps so, perhaps not! [10] In any
case it is not easy to see any significance to the difference. For other
sellers, perhaps, the product to be sold represents all investment on their
part, and therefore something they would be unlikely to give away, whereas the
incriminating information that the blackmailer possesses is much more likely to
have been gained without significant investment.

May be the difference lies in motivation,
Wendy Gordon suggests that blackmail should be outlawed because "the
blackmailer acquires information for the sole purpose of obtaining money or
advantage from the victim, and . . , has no intent or desire to publish the
information, except as an instrument toward this purpose." [11] But
why should the blackmailer's intent be of any interest to the law unless the
conduct in question has independently infringed another's rights? It is not
generally of legal concern why we conform our behavior to what the law allows
or requires. Intent only becomes an issue once the law is broken. But since
Alfred's disclosure of Bill's infidelities does not constitute conduct of a
kind the law would ordinarily prohibit, it should not be of any legal interest
to know why Alfred may or may not choose to disclose the information he has
about Bill. [12]

Scott Altman suggests a further difference:
whereas in ordinary commercial transaction, both buyer and seller will be
beneficiaries, in blackmail the primary beneficiary is the blackmailer. [13]
But why should the person who buys silence not also be seen as benefiting from
the transaction? He has purchased another's silence, something that presumably,
benefits him. It is true that, antecedent to the blackmailer's approach, the
blackmailee was not seeking to purchase the silence of others, but that was
because he believed that his secret was safe, and did not need to be secured
through purchase.

Blackmail and Coercion

Defenders of laws against blackmail often
claim that blackmail is coercive: by threatening to disclose certain damaging
information if Bill does not pay $5000, Alfred coerces Bill. [14] Or so it is
said. However, the idea of coercion cannot clearly be extended to such cases.
In paradigm cases, Alfred coerces Bill into parting with $5000 if he tackles
Bill and steals his wallet containing $5000, or if he puts a gun to Bill's head
and threatens to pull the trigger should Bill refuse to hand over $5000. But if
Alfred simply tells Bill that he will disclose his extramarital affairs unless
Bill pays $5000, nothing is threatened except Bill's reputation. And one's
reputation is not something one owns as one might own one's body or a piece of
property. Reputation is a form of social recognition to which one does not have
a right as one might have a right to one’s property [15] Should Alfred spread
the information without making any claim for money, he will have done nothing
illegal. Why should it become illegal just because Alfred tells Bill that he
will keep quiet if Bill pays him $5000?

Perhaps the argument from coercion can be
expressed as follows: The blackmailer's act is coercive because he proposes to
reveal information that he is obligated not to disclose. [16] But this will not
do either. Even if Alfred were obligated not to reveal the information, it
would still not show the threat to reveal it to be blackmail; rather, it would
be a coercive threat, for example, extortion. It would indeed be legally wrong
for Alfred to reveal what he told Bill in confidence, but the threat to
disclose it unless Bill pays Alfred to keep quiet would be a legal wrong not
because it is blackmail, but because it breached Alfred's contractual
obligation to Bill. But if there is no obligation for Bill to keep the damaging
information to himself, then and only then would there be no coercion involved
in making it known, Should Alfred accidentally find out about Bill's
extramarital affairs, he is under no obligation at all regarding its
disclosure. [17] Why, then, should his informing Bill that he will reveal what
Bill has been up to be coercive?

Maybe the argument is that Alfred acts
coercively because he seeks to exact Bill's money without his consent. [18]
Although no literal gun is being pointed at Bill's head, something else is-
serious damage to his life, reputation, job prospects, or whatever- should he
refuse to pay. This account, of course, would not work with cases in which
Bill, on hearing that Alfred possesses (and is likely to reveal) the information,
seeks him out to offer him "hush money, but perhaps the supporter of
blackmail laws may not mind cutting these cases adrift from the scope of such
legislation. Once again, however, we need to remind ourselves of the disanalogy
with the gunman. Absent monetary considerations, if the gunman pulls the
trigger a legally significant wrong is done to his victim, whereas, if Alfred
spills the beans on Bill's philandering no crime is committed.

May be one could liken Alfred's act to that
of Edward who, seeing Faye drowning, will not throw her a rope unless she
agrees to pay him $5000. [19] This is surely exploitative of Faye's situation,
but is it coercive? Were Edward to have pushed Faye into the water in the first
place, there would indeed be an argument for saying that the demand for $5000
was coercive; but exhypothesi he did not, and so, given that he
does not violate a legal obligation in not throwing a rope to her, it is hardly
coercive for him to demand something for his assistance. [20] Bill's follies,
likewise, are his own doing, and not the result of a "set up" by
Alfred, and if Alfred has come into possession of information that could be
Bill's undoing, may he not offer to withhold it on his own terms?

Blackmail and Exploitation

Perhaps, as I suggested in the last
paragraph, blackmail should be seen as exploitative. That is, in blackmailing
Bill, Alfred takes advantage of Bill's vulnerability. If so, should this
justify its legal proscription?

Note, first of all, that the notion of
exploitation is none-too-clear; it is, for example, used by Marxist writers to
characterize ordinary capitalist labor relations: in making a profit, employers
of labor are said to return to their employees less than the full value of
their labor. Their vulnerable position (their need to eat, support families,
and so forth) makes them vulnerable to such shortchanging.

But even with a less expansive and less
tendentious understanding, there is a gap between exploiting another's
vulnerabilities and doing something that should be considered illegal. If
George exploits Harold's generosity to get a loan, or Ivan exploits John's poor
management of a rival business or even John's sudden and debilitating illness
to gain a larger share of the market or to put John out of business, neither
George nor Ivan have done anything illegal, however opportunistic they may have
been. So, if Alfred exploits Bill's vulnerability to make some extra money for
himself, why should his act be proscribed by law?

Blackmail and Privacy

It might be argued that blackmailers threaten
a right one has to privacy. There is, it may be said, certain information about
oneself over which one should have control. It is "one's own
business," and not the business of others. If it is to be "given out,"
it is appropriately given out only if one has consented to its being shared. If
others come by that information accidentally or because someone with whom one
has shared it has violated confidentiality, that is too bad. The third party is
not guilty of any wrongdoing in having or sharing the information. However, if
the third party, realizing that one wanted to keep the information to oneself,
now chooses to use it as leverage for self-enrichment then that person is
violating the privacy rights of another no less improperly than the person who
taps one's telephone or bugs one's house or looks in one's personal files.

But there are significant differences between
these various cases. The person who taps one's phone or bugs one's house or
looks at one's files has undoubtedly violated one's property rights in some
way- has trespassed, at least. Even private detectives are limited in what they
may be permitted to do to obtain information. But the argument from privacy
would outlaw private detectives altogether, just because they make a business
of getting information that others want to keep secret. [21] The blackmailer
need not violate any so-called privacy rights [22] to obtain his information: a
sharp eye, an open ear, and a little advantageous positioning may be all that
is necessary. Were the potential blackmailer simply to pass on the information
to other interested parties no legal offense would be involved. Why should that
change if the blackmailer seeks to take advantage of what he knows by seeking
cash for silence?

Repeat Blackmail

Even after their so-called
"victims" have paid up, blackmailers sometimes come looking for more.
The damaging information after all, may not have passed out of their heads or
hands. It may therefore be argued that the only way to keep blackmailers from
repeatedly approaching those who have bought their silence is to ban blackmail
altogether. [24]

But repeated attempts at blackmail maybe
prevented much more easily if blackmail is decriminalized. All that is required
is that blackmailers sign a contract with the blackmailee that stipulates the
blackmailers' permanent silence in return for a payment of $X. Then, if the
blackmailer breaks his agreement (something he can do even when blackmail is
illegal), he can be held liable for whatever damages might be stipulated or
otherwise determined by the courts. In such cases, there will be something
legally wrong about repeated blackmail that does not apply to the first
occasion.

What is more, to outlaw blackmail in the
first instance because blackmail demands may be repeated in the future is not
to punish someone for a past crime done but for a (potential) future crime-
hardly what we have in mind when we speak of criminal justice. If this were
allowed to be a general legal principle, moreover, we would have to entrench in
the law the concept of preventive detention, for all members of groups
statistically over represented in the criminal category.

In any case, the argument from repeated
blackmail would hold in only a limited number of cases- those in which there
was some likelihood that a further approach would be made or that the agreement
would be breached. It would hardly provide a general argument against
blackmail.

The Consequences of Blackmail

Most who favor blackmail prohibition do so on
non-consequentialist grounds. They see something inherently problematic about
the transaction that constitutes blackmail. Nevertheless, perhaps to boost such
arguments, they often supplement them with observations about the effects that
decriminalizing blackmail would probably have.

Richard Epstein, for example, suggests that
were blackmail to be legalized, it would encourage the formation of
corporations such as his hypothetical "Blackmail, Inc.," an
organization devoted to ferreting out embarrassing (or worse) information on
people and then blackmailing them to have it kept quiet. [25] Assuming the
profitability of such an enterprise, a blackmailee might find himself the
target of numerous independent approaches and, to meet the financial obligations
incurred by this, might be led (or even encouraged) into committing crimes to
pay for his chronic secrecy need.

But are such fears well founded? Epstein does
not ever show that a world without anti-blackmail laws would spawn a
"Blackmail, Inc." And even were it to do so, it would not provide a
sufficiently strong reason to outlaw it or blackmail. The tastelessness or
unseemliness of a social institution is not a sufficient reason to ban it or
enterprises that exploit it. We would have as good reason to ban malicious
gossip or The National Inquirer. And the social pressure that might lead
a person into committing crimes to pay for secrecy would not differ
substantially from the social pressure to "be somebody" or
"impress others," motivations that may be just as likely to lead
people to commit crimes. [26]

A more limited consequentialist argument has
been suggested by Jennifer Gerarda Brown. [27] She suggests that were blackmail
in cases of incriminating information legalized, there would likely be a reduction
of crime. The criminally inclined would face the real possibility that they
would have to "split" the profits of their criminality or otherwise
pay to cover up their crimes, and such "costs" would constitute a
significant deterrent to criminal activity. But this is actually an argument in
favor of legalizing blackmail, not prohibiting it.

Buying Silence

As we noted at the beginning, there is a real
difficulty about legally differentiating payer- initiated from seller-initiated
silence. If Bill learns that Alfred possesses damaging information that he
might be inclined to disclose to others, and offers Alfred $5000 to keep quiet,
it is hard to argue that Alfred has either coerced or exploited Bill, or that
the transaction should be outlawed.

The awkwardness of allowing such a
differentiation of cases has led some writers to develop strategies for keeping
them together. Thus Scott Altman has claimed:

Evidentiary and definitional problems with
payer initiation can undermine any power it has to separate coercive from
non-coercive transactions. Some bargains appear payer-initiated because the
payer initially suggests the deal. But the payer might only learn of the other
party's intent to reveal the embarrassing information after that party
discloses this intent in order to elicit an offer or payment. Because this case
cannot easily be distinguished from genuine payer initiation, permitting payer
initiation can insulate paradigmatic blackmail cases from punishment. [28]

Similar arguments used to be employed against
all forms of euthanasia, lest it should become a cloak for murder. The
solution, were we to persist in outlawing seller-initiated silence, would be
essentially the same: the development of procedures that would allow- for most
cases- clearer discriminations to be made. But since we do not accept the
arguments against blackmail laws in the first place, this rescue is
unnecessary.

Blackmail and Victimization

Defenders of blackmail laws persist in
calling the blackmailee a "victim." Once seen as such, blackmailers
are easily tarred with wrongdoing. Yet this characterization trades on the
conflation of two distinct senses of "victim." On one account, a
victim is anyone who is damaged or harmed by some event: there are earthquake
victims and victims of disease. Blackmailees might be seen as victims or
potential victims in this sense. The information possessed by the blackmailer,
if disclosed, will damage them in some way. And one might argue that if one
kind of damage has been averted it has been averted only at a cost, and - at a
stretch - that one is a "victim" of circumstances that have a cost.

But the term "victim" may also be
used in a more restricted sense - as when we speak of someone being victimized.
Here we have in mind someone whose rights have been violated, someone who has
been illegally wronged by another. Is the person who is blackmailed a
"victim" in this second sense? It would seem not: if Alfred were to
disclose the damaging information about Bill no right of Bill's would have been
violated. That he should refrain from doing what he had a right to do in
exchange for some monetary consideration does not change the matter. (29)

Those who persist in speaking of blackmailees
as "victims" can mean "victim" only in the first sense. Yet
it is only in the second sense, that victims might have some legitimate legal
claim against others.

Hard Cases

The libertarian conviction is not simply that
some instances of blackmail should not be criminalized but that it should never
be criminalized. The libertarian therefore needs to confront some hard cases.

(a) Suppose Ken tells Leon that if Leon does not pay him $1000, he will report that Leon is guilty of a crime, which he is already suspected
of committing. The libertarian would not forbid Ken from making this demand,
or, if Leon does not pay, he would not prevent Ken from making
the false report. Ken has free speech rights, including the right to speak
falsely about another. True, the police-and courts-may subsequently accept
Ken's word about Leon, so that Leon is unjustly punished, but if they do that,
that injustice is on them for failing thoroughly to investigate Ken's report.
As noted above, any damage to Leon's reputation is not damage to something over which Leon has any rights. (30)

While the foregoing is perfectly compatible
with libertarian theorizing, it will strike many as repugnant. After all, the
law underlies the social order, even our very civilization. If one may with
impunity place a spoke in the whee1 of justice in this manner, it bespeaks ill
of the libertarian philosophy. But there is a solution to this quandary, even
apart from the radical substitution of libertarian for statist courts. (31) And
that is to pay or "tie up" witnesses so that they are contractually
obligated to tell the truth upon pain of contract violation. One of the great
injustices of our present court system is that witnesses are in effected
drafted into testifying, and, so, for that matter, are jurors. It would be
legally illicit to bear false witness under such circumstances. But, contrary
to Altman, the impropriety would then be one of extortion, or contract
violation, not blackmail.

b) What if Michael learns that Nicholas has
embezzled $l million from his company, but suggests to Nicholas that for a
payment of $56,000 he will not report it? Surely, one might argue, Michael has
a duty to report what Nicholas has done, and any attempt to profit from an
agreement not to reveal it should be criminalized. Although some libertarians
might balk at cases of this kind, it is certainly open to others - myself
included - to argue that whatever moral duty might be claimed to report the
crimes of another (and not to profit from them), nevertheless there is no basis
for legally requiring that the crimes of another should be reported. Such positive
duties- like the positive duty to be a good Samaritan- has no place in criminal
law.

Conclusion

Blackmail laws are often taken for granted.
Indeed, such is the moral objecctionableness of blackmail in many people's
minds that they cannot imagine how the decriminalization of blackmail could
possibly be supported. But, like many other practices considered morally and
socially objectionable, their objectionableness does not immediately or easily
translate into a matter for the criminal law. It has been my contention that
this is true of blackmail. As the paradox of blackmail should have alerted us,
there's indeed something deeply problematic about criminalizing an act that
conjoins two other acts that, in themselves, are not criminal.

NOTES

* Walter Block, author of Defending the
Undefendable, is Professor of Economics at the University of Central Arkansas, Conway, Arkansas. Email: wblock@mail.uca.edu.

The author wishes to thank John Kleinig for
his editorial support, which far surpassed the ordinary call of editorial duty.

1. Williams, Blackmail, [1954] CRIM.
L. REV. 79, at 163 (1954). It was Williams who originally spoke of "the
paradox of blackmail." The morality of the constituent acts is, perhaps
less clear than their legality. But my concern here is with the justification
of blackmail's criminalization not with its morality per se.

2. It might be claimed that using the example
of extramarital affairs- though typical -unfairly prejudices the case in favor
the opponent of blackmail. Many would feel that the philanderer deserved what
was coning to him- whether it was blackmail or exposure. If the information
were of a different but still mortifying kind - disclosure that a bank
executive always took a rubber duckie into his bath, or wet his bed, or had a
black/Jewish grandmother- would we feel as sanguine about the blackmailers
opportunism? Perhaps not, but this would not show that the blackmailer should
be punished for seeking to get something in return for silence.

5. Katz, Blackmail and Other Forms of Arm
Twisting, supra n. 3, at 1567-68. Sometimes the threat may take the form of
an offer- though of a form that Hillel Steiner refers to as a
"throffer"- in which failure to take it up is associated with
threatened consequences. See Steiner, Individual Liberty, 75
ARISTOTELIAN SOC’Y PROC. 33, at 39 (1974-75).

6. Mack, In Defense of Blackmail,
supra n. 4, at 277. To counter the response that these are cases in which the
blackmailees are being blackmailed only into not doing something, Mack suggests
that the factory owner might be blackmailed into donating money for Cambodian
relief (278).

7. Fletcher, Blackmail; The Paradigmatic
Case, supra n. 3.

8. Gordon, Truth and Consequences,
supra n. 3, at 1744.

9. See Altman, A Patchwork Theory of
Blackmail, supra n. 3, at1640.

10. Restaurants and supermarkets often donate
"day old" food to the poor.

12. In actual fact, a blackmailer's motives
might be much more complicated. Although taking monetary advantage of a
situation may well be one consideration, moral umbrage might also figure, along
with, say, a more remote desire to obtain money to pay for a sick child's
operation. Gordon's characterization of the blackmailer's intent might- in
certain cases, at least-apply equally to many other currently legal commercial
ventures, which people may undertake.

13. Altman, A Patchwork Theory of
Blackmail, supra n. 3, at 1641.

14. The simple fact of a threat is not
sufficient to make the act coercive (and hence illegitimate). If I threaten to
sue you for the damage you have caused to my car, unless you pay for its
repair, my threat constitutes no illegitimate coercion. Should it be argued
that some threats one has a right to make (as in the latter case) whereas
others one has no right to make (as in blackmail), the libertarian will reply
that this begs the question: Why should Alfred not threaten to reveal Bill's
extra-marital affairs unless some payment is made?

15. Should it be objected that the
destruction of reputation by means of disclosure of information about one does
constitute a violation of rights (as is sometimes allowed by laws against libel
and defamation), the libertarian will respond that the question is begged. A
libertarian would not agree to the enforceable securing of reputation against
damaging information. On this see W. BLOCK, DEFENDING THE UNDEFENDABLE, Supra
n.4, at 59-62; M. ROTHBARD, ETHICS OF LIBERTY, supra n. 4, at 121-22.

16. For this argument, see Altman, A
Patchwork Theory of Blackmail, supra n. 3, at 1642, fn. 11. For a
rejoinder, see Block & McGee, Blackmail As a Victimless Crime supra
n. 4, text at note 23.

17. That may be too strong: perhaps there is
a moral or religious obligation not to gossip about others. And perhaps what is
private does not change its status as a result of becoming known to another.
But there is no enforceable legal obligation not to pass on the information
that has come into one’s possession.

18. Katz, Blackmail and Other Forms of
Arm-Twisting, supra n. 3, at 1599.

19. See Altman, A Patchwork Theory of
Blackmail, supra p. 3, at 1643.

20. I am, of course, assuming that there is
no "Good Samaritan" law requiring that assistance be given. Were
there such a law, a libertarian would of course oppose it.

21. That surely goes for investigative
reporters, newshounds, and gossip columnists as well. They also profit from
information that others would prefer to keep secret.

22. Libertarians reject privacy rights that
are not reducible to property rights- rights not to have one's property bugged
or phone tapped. See M. ROTHBARD, THE ETHICS OF LIBERTY, Supra 4, at 121-22.

23. Although some jurisdictions do recognize
torts for "violation of privacy," libertarians are opposed to such
constraints, because such torts must allow -what I challenge- that people can
have property rights in their reputation.

24. See e.g., Fletcher, Blackmail: The
Paradigmatic Case, supra n. 3, at 1623, 1627. See also Altman, A
Patchwork Theory of Blackmail, supra n. 3, at 1648. Fletcher sees the
possibility of the blackmailer's coming back for more as constituting a
permanent domination of the blackmailer over the blackmailee. But that is only
if no contract is made between the blackmailer and blackmailee forbidding any
further claims.

25. Richard Epstein, Blackmail, Inc.,
supra n. 3.

26. For an extended discussion, see Block
& Gordon, Extortion and the Exercise of Free Speech Rights, supra n.
4.

27. Brown, Blackmail as Private Justice,
supra n. 3.

28. Altman, A Patchwork Theory of
Blackmail, supra n. 3, at 1649.

29. Indeed, one might be inclined to argue
that the blackmailer displays a kind of decency toward the blackmailee by
offering him a way out of his predicament (the blackmailer's opportunity to
damage the potential blackmailee by disclosing- as he has a right to do- the
information he has on him). The gossip provides no such injury-averting option.
See Block & Gordon, Blackmail, Extortion and Free Speech, supra n.
4, at 39: "In contrast to the gossip, who tells the secret without even
affording the victim the opportunity of purchasing silence, the blackmailer can
be seen as a benefactor."

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